‘FOI and the Consent of the Governed’

Thursday, March 17, 2005

Sen. John Cornyn, R-Texas, at
National FOI Day conference.

Thank you, Paul (McMasters), for that kind introduction, and for all the
great work you do with the Freedom Forum.

I also want to extend my thanks to those of you with the First Amendment
Center. Our Founders believed that the freedom of the press was important enough
to put it in the First Amendment to our Constitution. And I would argue that,
despite what some may think, the freedom of the press is the primary freedom
contained within that amendment.

You see, when the Founders wrote about “freedom of speech,” they were
referring primarily to members of Parliament in Britain who were jailed for
speaking out against the crown. It isn’t surprising that our Founders would long
for such defenses for themselves, to speak out their opinions in the future
halls of Congress.

Yet when the Founders wrote about “freedom … of the press,” they weren’t
referring to their political, social, or economic peers. They weren’t endorsing
professional ranks, the way we think of journalists today. They were referring
to the riffraff in the streets, the pamphleteers and the common citizens, who
deserved to have their freedom, too.

So I’m honored to join you all this morning, and to have the opportunity to
talk to you about an issue that’s closely tied to the age-old philosophy of
freedom that motivated our Founders. It is a challenge that is near and dear to
my heart and yours: restoring our nation’s commitment to the fundamental
principle of open government.

Open government is one of the most basic requirements of any healthy
democracy. It allows for taxpayers to see where their money is going; it permits
the honest exchange of information that ensures government accountability; and
it upholds the ideal that no just government rules without the consent of the

As is so often the case, Abraham Lincoln said it best: “No man is good enough
to govern another without that person’s consent.”

But I believe that we have to recognize that achieving the true consent of
the governed requires something more than just holding elections. What America
needs is informed consent. And informed consent is impossible without both a
free, responsible press, and an open and accessible government.

We are really just talking about human nature here. It is only natural that
elected officials and government leaders want recognition for their successes,
but not their failures. That’s an understandable motivation. But as a healthy
democracy, we need to know the good, the bad, and the ugly.

Of course, the news media is the main way we get information about
government. The media pushes government entities, bureaucrats and agencies to
release information that the people have a right to know, exposing waste, fraud
and abuse. Yet over the past few decades, while technology has expanded and the
media has fundamentally changed, our information policies have lagged behind.

It has been nearly a decade since Congress has approved major reforms to the
Freedom of Information Act. The Senate Judiciary Committee has not convened an
oversight hearing to examine FOIA compliance issues since 1992. And in that
time, I believe the growth of technology, the Internet, and the expansion of
blogs have created a real desire among the media and the American people to
achieve more direct, efficient, and open access to government information.

That’s why I recently introduced the OPEN Government Act of 2005 along with
Senator Pat Leahy. This legislation is a bipartisan effort to improve and update
our information laws – particularly FOIA – in order to respond to the concerns
of watchdog groups, citizen activists, the news media, and the realities of our
information-driven world. And in a hearing I chaired yesterday, we heard from a
bipartisan panel of experts from across the political spectrum on both the need
for reform, and effective examples of strong FOIA laws — such as the one in

The OPEN Government Act contains over a dozen substantive provisions,
designed to achieve the following four objectives:

(1) Strengthen FOIA and close loopholes.
(2) Help FOIA
requestors obtain timely responses to their requests.
(3) Ensure that
agencies have strong incentives to act on FOIA requests in a timely
(4) Provide FOIA officials with all of the tools they need to
ensure that our government remains open and accessible.

As a whole, the OPEN Government Act reiterates the principle that our
government is based not on the need to know, but the fundamental right to know.
It has received broad support, across the ideological spectrum, and it will
significantly expand the accessibility, accountability, and openness of the
federal government.

One of the questions I am often asked concerns the importance of balancing
national-security concerns and openness in government in a time of war. We all
recognize that there is an inherent risk in having an open government, that the
broadcast of information can literally risk the lives of American troops in the

I’m reminded of a comedy sketch that ran on “Saturday Night Live” during the
Gulf War, when a poor U.S. military spokesman was pestered with questions from
the press. Questions included: “Where are we most vulnerable to attack?” “What
would be the most damaging information for the Iraqis to know?” and from a man
claiming to be from the Baghdad Times: “Where exactly are your tanks, and
can I go and look at them?”

In all seriousness, we must recognize that America's security should never
take a back seat. But nor should any unjustified invocation of national security
be used as a barrier that keeps taxpayers from knowing how their money is

There is a broad consensus across the political spectrum that we currently
over-classify government documents – that too many documents and (too much)
information is placed beyond the public view without any real justification. I
believe we need a system of classification that strikes the right balance
between the need to classify documents in the interest of our national security
and our national values of open government.

Our default position of the U.S. Government must be one of openness. If
records can be open, they should be open. If there is a good reason to keep
something closed, it is the government that should bear the burden, not the
other way around.

So Senator Leahy and I will continue to proceed with the OPEN Government Act.
We also have introduced another bill as of last week: the Faster FOIA Act, which
supplements our other efforts by establishing an advisory Commission on FOIA
Processing Delays. The commission will report to Congress and the president,
recommending steps that will reduce delays in the administration of FOIA.

Open government is fundamentally an American issue, not a Republican or
Democrat issue. It is literally necessary to preserve our way of life as a
self-governing people. By reforming our information policies to guarantee true
access by all citizens to government records, we will revitalize the informed
consent that keeps America free.

I want to thank you for your continued support. I want to thank you for
inviting me here today, and I’m happy to take your questions.

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